Chapter 20 The Closing Speech

The closing speech is the reason advocates exist.

It is their weapon, their art, it is the moment for persuasion.

Some say the advocate's greatest weapon is cross-examination.

Not so.

A good speech can recover a bad cross-examination.

But a weak speech can lose an otherwise winnable case, even after a good cross-examination, especially if your opponent makes a much better closing speech.

Beware the closing speech - master it, or fail !

Remember how everything throughout the case should have been geared toward the closing speech.

The speech should have been sketched out on receipt of the brief.

At trial, all the evidence elicited should be weighed against how it will affect closing.

Questions of witnesses will have stopped short of comment: just enough evidence will have been elicited to allow comment later in the closing.

Closing is when you draw together all of the case, all the answers from the witnesses, all the little incidents which arose at trial, and you present your theory of the case.

The speech you make in court ought to be within 80% of the speech you sketched on receipt of the brief: if so, you have run the trial well; if not, something has gone wrong in your control of the witnesses.

Closing it is all about persuasion.

100% persuasion.

This means 80% comment.

It is not about the facts: it is about comment on the facts. You mention the facts to make persuasive comment - and comment you must, liberally, and with forethought.

Closing is not about repeating what the facts were:

CLOSING IS ABOUT EXPLAINING WHY THE FACTS AS THEY EMERGED AT TRIAL MEAN YOU WIN.

The very first thing to say about a persuasive closing speech is this:

ALWAYS WRITE IT OUT.

At the very least create a fairly detailed note.

Always.

Absolutely always.

Do not try to wing it.

Do not assume you will be inspired as you open your mouth, and that words and ideas will flow, and the case will come stunningly together.

You will be wrong.

You will miss points.

You will express good points clumsily.

You will blunder into points which are very much against you, flapping for some means of minimising them, instead of nimbly, deftly, subtly, and with MEASURED FORETHOUGHT skirting around them.

Write it out.

Not necessarily every word, but CONSIDER EVERY SENTENCE you will utter.

Arm yourself with careful phrases which powerfully capture your case.

If you need time to write out the speech and draw together the best points, ASK FOR TIME.

Do not be afraid to do so.

It often happens in Magistrates Courts or County Courts, where the pace of hearings can suddenly mean the time has come to make your closing speech.

Ask for time.

This is your moment - your client's moment through you.

Don't let it slip through your fingers.

In a Magistrates Court, you should only need five minutes to gather your thoughts - but get those five minutes.

I mentioned something earlier which needs repeating, and elaboration, and on your part, memorisation.

The whole point of a closing speech is to TELL THE TRIBUNAL WHY YOU WIN.

When preparing your closing speech, your first line inside your head ought to be:

‘We win because...’

There may be several ‘we win because...’ sentences. Having identified them, now develop them.

Closing is not a description of the evidence. It is not a summary of the evidence. It is a series of comments on the evidence. It is argument, not regurgitation.

So many young advocates simply repeat the evidence, without deadly comment.

Let's say that again: CLOSING IS ARGUMENT, NOT

REGURGITATION.

It draws on the evidence which has been heard and explains to the tribunal, by reminding it of the evidence, why that evidence means you win.

Do not simply repeat the evidence.

Don’t simply say: ‘it was dark and the burglar was 40ft away.’

You do it this way: ‘it was dark and therefore the witness may be mistaken, can you be sure he is not? Moreover, in that darkness, you are asked to be sure the witness is not mistaken when peering into a distance of 40ft.

When you weigh a fact, ask yourself, ‘why does this fact mean I should win?’

Don’t assume anyone will guess why you win - spell it out.

Every time, spell it out.

‘Three’ is an important number in speeches.

As you know, it is important elsewhere - remember the 3-3s.

When dealing with a jury, (not a judge !), it is usually a good idea to:

TELL THEM WHAT YOU WILL SAY, then

TELL THEM IT, and then

TELL THEM WHAT YOU'VE SAID.

In this way, you repeat your best points three times.

Let's see how it can be done:

Start your closing with your THREE BEST POINTS.

Summarise them.

Now go into the detail of the evidence, mixing comment, coming back to those three best points as part of the detail.

Finally, at your peroration, repeat your three best points, in summary.

See, you've repeated your three best points three times.

A jury is likely to remember some of them, and hopefully all of them.

Three is always good.

Of course, it does not really apply to addressing judges, as was mentioned before in an earlier chapter.

If doing threes with a judge, you should not repeat a point three times, as you can expect the point to be comprehended first time.

However, as was mentioned before, what you can do is find three different ways of making the same point.

There is a difference.

When giving reasons for an argument to the jury, give three.

A witness is unreliable, vague, exaggerating.

A witness is solid, impartial, measured.

A defendant is lying, lying, lying.

A description was extreme, absurd, fanciful.

An expert was careful, cautious, helpful.

For reasons which are a mystery, supporting a point with three reasons sounds great, and carries weight, even if it shouldn't.

Threes give you momentum.

Like a wave, your words roll over the court.

You appear relentless, unstoppable, strong.

When jurors lose concentration, which is common and understandable, even if they hear just one of three reasons, they still follow your point, as the wave and flow of your words carries the jury, even if the other two reasons are missed.

Threes are all about RHYTHM.

Be aware of it.

It can carry an audience.

Imagine you are sweeping the listeners home, carrying them off, like leaves in a river.

A flow of words, like a flow of water, has direction.

Actors know this.

Even if not concentrating on your precise words, an audience can be swept to your bidding by the rhythm of your sentences and the engaging mesmerising projection of your voice and personality. You can carry folk with flow alone.

When speaking,

remember,

remember,

remember,

VARY YOUR VOICE

frequently, gently rising and falling with your points.

A varied voice is interesting to listen to - and you want the jury listening.

Speak quietly so the jury have to lean forward and concentrate to hear you. Then steadily louden your voice from your chest - not shouting. The force of your voice now presses upon their minds.

Undulate your sentences. Quicken them, slow them down.

Emphasise words, pause, emphasise another word, pause, quietly press to the end of the sentence, voice gently rising to the full stop.

Now pounce on the next sentence, ask a rhetorical question, voice rising with the question mark, and answer it, staccato like, emphasising each word, with measured gesticulation.

Get the picture?

At least get this: don't be dull.

And you need to be remembered.

It may be some time before the tribunal retires to decide - find a way to make sure what you have said will be remembered.

USE A MNEMONIC.

Take your three best points, and create thee letters, and then create an expression - like this:

The three primary points I wish to emphasise are as follows. My first point is the witness was reliable; my second, that the forensic evidence is devastating; and my third, is that he confessed at the police station: ‘r’ for reliable, ‘f’ for forensics, ‘c’ for confession - ‘RFC’ - let’s say that stands for ‘rugby football club’ - so when you retire to consider your verdict, please remember the expression ‘rugby football club’, and you will remember these three points: Rugby is for r, for reliable; football is for f, for forensics; club is for c, for confession.

If done right, the tribunal will remember the mnemonic for years, never mind til they retire, and therefore your three best points, forever.

GESTICULATION can be a powerful tool.

Avoid dramatics like thumping tables.

Refrain from too much hand movement.

Do not plan it - it looks wooden.

But some gesticulation is allowed.

There is no rule which says to keep your hands firmly behind your back.

Just let it happen.

But when it does, ensure the gesticulation is PURPOSEFUL RATHER THAN PLENTIFUL.

PRACTISE, PRACTISE, PRACTISE your closing speech.

I'm not kidding.

Mirrors are good for this. It is a performance. Watch how you move, how you hold your head, what gesticulations naturally work.

If you can, get in front of a video camera at least once a year and get a good look at how you appear, and at what seems to work.

It's spooky but useful. You’ll be amazed to see yourself. At first you will be embarrassed - but it is better you are embarrassed in private than you embarrass the client in public. And as you work on how you appear, you will very, very quickly improve, it’s pretty much guaranteed.

Listen to the sound of your words, and remember FLOW, FLOW, FLOW.

A speech should not be a treatise in scientific dispassion. It should bubble and swirl and froth.

Not excessively.

It should be about reaching inside the minds, and particularly inside the instincts of the jury or tribunal.

Closing should have a touch, just a touch, of drama.

It should have heart.

It should be restrained, with a hint of passion.

Persuasion is when the facts meet feelings - or put another way, when REASON MEETS EMOTION - you want the tribunal to feel you are right, and not just think it. You must first satisfy their heads - but they will not buy into your argument until they feel it's right - imagine you are shopping for a pen - you buy the one that feels right, not just can write.

When you find the persuasive argument, it clicks, it is not rational - it clicks - what that means or why it happens I do not know, but it clicks - you know what I mean - if you don't, go home, you'll never get persuasion - it's like an elephant, difficult to describe but you know what it is when you come across it.

Every speech should find the CLICK.

Criticism of witnesses should usually be MORE IN SORROW THAN IN ANGER.

Do not appear angry with a witness.

A jury will generally feel it is inappropriate for you to get righteous.

If attacking a witness, put your concerns in terms of how unfortunate it is that the witness is wide open to attack. Suggest to the jury that one is sorry to have to say the witness was exaggerating or lying. These things sadly happen. They should not. But they do. The witness should have told the truth, but unfortunately in the theatre of court, with battle lines drawn, she has become biased and prone perhaps to overstate what she saw. It is understandable but most unfortunate that she is not accurate, is not reliable, and sadly, you may feel members of the jury, even not telling the truth.

Let the jury then be angry with the witness.

But as for you, they will think you a model of restraint.

Of course, the speech should be all about the evidence heard during the trial.

Never fall into the trap of appearing to give evidence or appearing to give your own opinion.

You can in fact do just a little bit of both, but there are rules.

Providing you refer to what may sensibly be thought by most to be within COMMON KNOWLEDGE, what you say is not a form of giving evidence.

You cannot tell the jury about the life cycle of a bruise in great medical detail if there has been no evidence of that medical detail; but you can observe that bruises do not appear immediately as a matter of common knowledge - redness might, but not dark discolouration, which takes a little time, we all know this.

What is in common knowledge is a wide area. We can refer to famous films or books, to incidents in the news, and to the little irritations we all experience in shops or trains and on the Clapham omnibus.

The advantage of injecting these features into a speech is that the jurors identify with the advocate.

Hopefully, if it is done right, it creates a sense of shared experience, outlooks, understanding, and values.

Instead of being a lawyer talking at them, you become a person sharing suggestions with them.

If they identify with you because of shared experience, a jury is more likely to agree with you.

A SHARED IMAGE from outside the evidence can be a powerful peg upon which to hang an important point.

If you can associate some key feature of the case with some clear image that everyone has seen, for example in a film, then you know exactly what that image is inside each juror's mind.

The image sown is not open to the vagaries of imagination in which each person sees something slightly different in their mind's eye.

To some extent, you have precise control over the jury's perception.

Let's consider an example. It may not be the best example, but it could help to set the idea.

Let us suppose it is important to convey to a jury how upset a mother was at being separated from her child, which then led to an alleged assault on a police officer. You might remind the jury of the desperately sad moment in Disney's ‘Dumbo', when the little elephant is separated from his mother. Most people on the jury will have seen it, and many will have had tears in their eyes. You might remind them, carefully, oh very carefully, of that moment to help explain your defendant's feelings at what you say is the unthinking irrational moment she may have struck out in what she thought was defence of her frightened child being taken from her. Will anyone convict, no matter how hard the officer was clouted, if you have Dumbo playing in the mind of the jury?

But be sure the image fits and is not some cheap trick to hoodwink the jury. They will not like that.

Be careful how you introduce it. Look for the click.

It's often a question of feel and experience, but a shared image can be a powerful tool of persuasion.

Quotations can be a peculiar form of common knowledge. Everyone is assumed to know Shakespeare and the utterances of the great novelists, philosophers and politicians. But of course, they don't really.

BE CAREFUL OF QUOTATIONS.

They can sound pompous.

They are always best delivered as throwaway lines, rather than as heart­stopping utterances.

If a quotation works, and it clicks, a jury will know.

If it does not, as a throwaway line then the jury will forgive you.

But be careful.

My own view is don't try quotes until you have a few years experience. If uttered with the wrong emphasis, you lose respect, and if you lose respect, you fail to be persuasive.

Turning now to opinion, the golden rule is don't appear to give your own.

Notice the word ‘appear'.

It is all a question of how you do it.

Inevitably, a speech is an opinion.

But it has to be pitched right.

You dress up your opinion as comment - and then you invite the jury to consider the comment.

In other words, advocates use stock phrases like:

‘You may feel that... the defendant is lying’; or

‘You are invited to consider whether in light of the evidence the witness is mistaken’.

Or

‘You may think...'

‘It's a matter for you whether...'

‘It may be that your assessment is...'

What you are in effect suggesting is an opinion to the jury that the defendant is lying and the witness mistaken. But of course it does not look or feel like that, because instead it is offered as the opinion of the jury, and not of the advocate.

I guess the short point here is:

OFFER OPINION TO THE JURY AS THEIRS NOT YOURS.

Do not blunder into

‘Ibelieve.’,

‘In my opinion...’,

‘You should believe...’,

‘It is obvious that.’.

A tribunal will jealously guard its right to decide a case. It will instinctively rebel against being told what your opinion is since your opinion ought to be irrelevant. Get this - I’ve said it before - you are irrelevant. The tribunal will feel only its own opinion is important.

Again, as I have said before, if you push, it will push back.

Frame everything as a delicate invitation.

So much of an effective speech is a question not simply of what you say, but of how you say it.

DO NOT ATTEMPT HUMOUR, unless you are very, very good.

It should always be a throwaway line, and it absolutely must fit the facts. If you step outside the facts to tell a joke, even a good joke, professionally you will almost always drown in court.

Juries hate it. Any tribunal hates it. They think you are trying to hoodwink them by amusing them, and that you think they are stupid enough to follow you because you have entertained them.

One other thing: juries are not stupid.

Some people like to suggest they are. But they are not.

No way.

Ever.

They can become confused. But never stupid.

Individuals on a jury may be slow, but a jury of twelve is an organ which is much greater than the sum of its parts.

Collectively it sees everything, misses nothing, and has considerable wisdom.

Mark these words:

NEVER, NEVER, NEVER ASSUME A JURY HAS MISSED SOMETHING.

And on that point, because you must never assume the jury has missed something, ADDRESS EVERYTHING in your speech which may affect your case.

It is fatal to ignore some feature of the evidence because it was only mentioned once, is too difficult to deal with, mentioning it will only draw attention to it, and it may open a can of worms in the jury's mind.

No, no, no.

That can is already open and you must put the lid back on.

If you can see a problem, you can be sure they can.

And if you don’t deal with the problem, they will know why - they will know it undermines your case and you have no persuasive answer, and so you will lose.

In the early stages of your career, as a rule of thumb, try to keep a speech to no more than TWENTY MINUTES.

Any longer, and we are likely to bore the jury, unless we have all the great delivery techniques.

Just a rule of thumb.

As another rule of thumb, A CLOSING SPEECH SHOULD START WITH THE TEST.

If prosecuting, say to the jury:

‘The Crown invites you to say you are sure he knew he was carrying drugs. That is the test - are you sure. And the Crown invites you to say you can be sure for these three key reasons...^, and off you go with your three best points, succinctly, quickly and clearly stated. ‘And when you consider these three points in evidence you may feel it is clear, it is obvious, applying the crucial test, you are sure he knew what he was carrying drugs in that bag’. Now you dive into the detail of the case, repeating your three best points as you go. And then perorate with them.

If defending, how about starting:

‘In order to convict this man, you must be sure he knew he was carrying drugs. Sure. Not suspicious. Not probably knew. Sure. And if you feel he did not know, or may not have known, naturally and properly you would acquit. May not have known. In other words, is it reasonably possible he did not know. The defendant need prove nothing. The prosecution must prove its case. The prosecution must prove there is no reasonable possibility he did not know. Nonsense, when you consider these three points...^, And off you go with your three best points. And then remind them of the test again. ‘In this case, sure means the total absence of a mere reasonable possibility. And I respectfully invite you to conclude that possibility is perfectly reasonable. You may feel you should acquit, that you must, knowing suspicion is not enough. Let us look at the evidence

If you start with the test, the jury measure everything you say against it.

It gives them direction and a framework in which to place the evidence.

And of course, at the end, it is usually best to remind the jury of the test and naturally of those three best points again, giving the tidy impression you have come full circle.

I’d like to share with you an example of what I think is a great speech. It is when the US President Ronald Reagan on 12 June 1987 said in Berlin before the crowds in front of the Brandenburg Tor: Mr Gorbachev, tear down this wall. Please watch on the internet the four minute paragraph leading to this historic line.

It is great because Reagan has the 3i’s - he is irresistible, invisible, and shows integrity. He does not big himself up, which he could, as US President - instead he is in a plain suit, and speaks calmly, slowly, with no theatrics, and finds the common sense position. The speech is simple enough to be delivered, or understood, by a 15 year old. Although he is appealing to the crowds, and represents them, his message is not for them - it is for his real audience, namely the person with the power to decide - that person was the General Secretary of the Communist Party of the USSR - in advocacy terms, he is speaking not to the client, but on behalf of the client to the tribunal.

Really get this - Reagan does not play to the gallery, though the people cheer, in fact he plays to the decision maker. Importantly he tries to see things from Gorbachev’s perspective, and uses this persuasively, arguing that if the Soviets really do want openness and progress, as Gorbachev had been saying, then the obvious thing to do would be to take down the Berlin Wall. And there’s a gotcha moment - where you feel he is right, not just think it - he closes with ‘open this gate', which is rational, and then finishes with ‘tear down this wall', which is emotional - though restrained, yet it gets you in the gut - it’s brilliant, understated, utterly persuasive - and the Wall finally came down on 9 November 1989.

There are of course other types of speech. For example, we all know the 1961 speech of John F Kennedy on his inauguration, or in 1963 Martin Luther King telling the world ‘I have a dream’, or on stage when Shakespeare’s Henry V rallies the troops - ‘we few, we happy few’ - on the eve of Battle of Agincourt, or in film, a personal favourite, in Lord of the Rings, where King Theodin of Rohan rallies the riders - ‘spears shall be shaken’ - before the battle of Minas Tirith. Such speeches are designed to be inspirations - they are about how hard the road will be, but how the sacrifice will be worth it - they are oratory, they are not for court, they do not work there.

Court should be a calm place, for quiet reflection - it is not for whipping up the crowd.

Better to consider are Kennedy’s 1961 address to Congress to request the huge funds to put a man on the moon - or anything by Churchill - each making a case to a sceptical audience - look for the reasonable tone, the intelligent simple language, the flow, the rhythm - particularly in Kennedy - and their use of implacable irresistibility - particularly in Churchill’s speeches on ‘our finest hour', how we will ‘fight on the beaches', and his 1934 warning of coming war. Find them on the internet right now.

And finally, in every speech,

Or in whatever you do in court,

as was mentioned in the chapter on persuasiveness: TELL A STORY,

KEEP IT SIMPLE,

SHOW THE WAY,